Common-law review, consensus and quantum leaps [Discussion of Trustees for the Time Being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd 2022 1 SA 424 (SCA)]

• DOI: https://doi.org/10.47348/SLR/2022/i4a7
• Published date: 28 March 2023
• Pages: 690-702
• Author: Pretorius, D.M.
• Date: 28 March 2023

690

https://doi.org /10.47348/ SLR/2 022/i4 a7

COMMON-LAW REVIEW, CONSENSUS AND

QUANTUM LEAPS [DISCUSSION OF TRUSTEES

FOR THE TIME BEING OF THE LEGACY BODY

CORPORATE v BAE ESTATES AND ESCAPES

(PTY) LTD 2022 1 SA 424 (SCA)]

DM Pretorius

BA (Hons) LLB LLM PhD

Partner: Bowmans, Johannesburg

Abstract

The judgment in Trustees for the Time Being of the Legacy Body Corporate

v Bae Estates and Escapes (Pty) Ltd 2022 1 SA 424 (SCA) explores aspects of

judicial review of decisions made by private organisations in the exercise of

private power. In particular, the judgment addresses the reviewability of such

decisions for want of compliance with the rules of natural justice. At common

law, courts will review disciplinary proceedings of private bodies to ensure

compliance with natural justice. Whether or not the rules of natural justice

nd application in non-disciplinary proceedings of a private body depends on

its internal contractual arrangements. The judgment under discussion fails to

engage adequately with the relevant common-law principles, resulting in an

unconvincing decision that obfuscates rather than claries the legal position

in this regard.

Keyword s: Common-law judicial review; voluntary associations; review of

acts performed by pr ivate bodies exercising private power; natural justice

in contractual context; audi alteram parte m and legitimate expectation in

contractual relations

1 Introduction

The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) partially

codied the requirements for valid administrative action and the grounds on

which courts may review and set aside administrative action. This quasi-

codication of our administrative law did not consign the entire corpus

of common-law principles of administrative law and judicial review to the

dustbin of legal history (to paraphrase Leon Trotsky’s famous expression).

Common-law principles continue to inform the content and development of

administrative law.1 In addition, judicial review of decisions of private bodies

1 Buffalo City M unicipality v Gau ss 2005 4 SA 498 (SCA) para 8

(2022) 33 Stell LR 690

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